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Opinion filed:  December 28, 2001

Following a jury trial, defendant, Darrol K. Hope, wasconvicted of one count each of aggravated battery (720 ILCS 5/12--4(b)(1) (West 2000)) and battery (720 ILCS 5/12--3(a) (West 2000)). The trial court sentenced him to six years' imprisonment foraggravated battery and 364 days in jail for battery. Defendantappeals his convictions, arguing that (1) he was prejudiced whenthe prosecutor mentioned during closing argument that defendant wasattempting to trick the jury by introducing a lesser-includedoffense instruction, (2) the court erroneously denied defendant'srequest to proceed pro se, and (3) the six-year sentence foraggravated battery violates Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm defendant'sconvictions, but we vacate his sentence for aggravated battery andremand the cause for resentencing on that conviction.

FACTS

Defendant was charged with the aggravated battery of hissister, Vivian McDonald, and her husband, David McDonald. Assistant public defender Jameson Kunz was appointed to representdefendant, and Kunz informed the court that Dr. Syed Ali had founddefendant unfit to stand trial. The State then enlisted Dr. LyleRossiter to examine defendant. Defendant told Dr. Rossiter that hewould not speak with him until Kunz was removed from the case. Another assistant public defender accompanied Dr. Rossiter toexamine defendant, and the court subsequently scheduled a fitnesshearing.

At the hearing, defendant again asked Kunz to withdraw becausehe allegedly failed to contact several witnesses. Kunz respondedthat defendant would not disclose the names of the witnesses hewished to call. Dr. Rossiter testified that defendant was fit tostand trial because defendant understood the charges against him,the potential penalties if convicted, the nature of the courtproceedings, and the roles of the judge, prosecutor, and defensecounsel. Dr. Rossiter also stated that defendant could recall theevents at issue and assist his attorney at trial. Dr. Rossiter didnot believe that defendant was schizophrenic.

Dr. Ali testified that defendant probably suffered fromparanoid schizophrenia. Defendant had told Dr. Ali thatdefendant's sister, Vivian, often played mind games with him andread his mind in an effort to turn him into a "faggot." A juryfound defendant fit to stand trial, and the court permitted Kunz towithdraw from the case.

Assistant public defender John Elias was appointed, and heinformed the court that defendant had complained that Elias hadneedlessly delayed the case and had incorrectly changed defendant'splea to "temporary insanity." Elias stated that there was still alegitimate doubt as to defendant's fitness and that defendantwanted a new attorney. Defendant announced that he wished torepresent himself and that he wanted to hire his own attorney. Thecourt ruled that no changes to defendant's representation couldoccur until his renewed unfitness claim was decided. The courtsubsequently accepted another expert's finding that defendant wasfit.

Elias later stated that he wished to withdraw becausedefendant would not communicate with him. The court told defendantthat his only alternative was self-representation. Defendantresponded that he could not read or write very well and that he didnot know the law. The court stated, "Well, if you are telling meyou don't have any idea what you're doing, I am going to deny the[public defender's] motion to withdraw." Defendant was admonishedthat his failure to cooperate with counsel would hinder hisdefense.

Assistant public defenders John Elias and Tara Howardrepresented defendant at trial. Defendant's sister, Vivian,testified that she occasionally permitted defendant to sleep in herhome because he was homeless. Defendant was allowed to enter thehome only after 9 p.m., but he could not enter the bedroom, and hewas to leave each morning before Vivian left for work.

On January 29, 1999, the night of the incident, Vivian washome with David and defendant. Vivian and David left to buydinner, and when they returned, Vivian saw defendant walk out ofthe bedroom. Vivian and David watched a movie and ate in thebedroom. When David carried the dishes to the kitchen, Vivianheard him ask defendant why he had been in the bedroom. David anddefendant argued, and Vivian suggested to defendant that he mighthave merely been sleepwalking. Defendant grabbed Vivian's neck,beat her, and bit her over her left eye. As she broke free and rantoward the front door, she saw defendant enter the kitchen and sheheard a drawer open. Vivian tried to call the police but the phonewas broken. David and defendant fought in the bathroom, and sheheard David say, "Why did you stick me with that knife?" Viviancalled the police from a neighbor's home.

David testified that he saw defendant choking and bitingVivian. David grabbed defendant and, as they fought, David wasforced into the bathroom. Defendant stabbed David twice with aknife and bit off part of his ear. Shortly thereafter, the policearrived and restrained defendant.

Defendant testified that Vivian and David had argued for threeweeks before the incident. During one of the arguments, defendantsaw Vivian retrieve a knife and David beat her head. On the nightof the incident, defendant went to sleep on the couch, but Davidwoke him in the bedroom. Defendant told Vivian that he did knowhow he had arrived there, and the two began to argue. When theargument escalated, David struck defendant with a shiny object thatdefendant believed was a gun. Vivian and David struck defendant,and defendant grabbed a nearby knife and began swinging it. Davidand defendant wrestled in the bathroom, and David struck him witha mirror before the police arrived.

Carol Stream police officer Tom Eby testified that he sawDavid strike defendant in the head with a silver object. At thetime he was handcuffed, defendant was very agitated and attemptedto lunge at another officer.

During closing argument, Assistant State's Attorney Alexanderargued that the jury should find defendant guilty of the aggravatedbattery of David. The trial court had previously granteddefendant's request to instruct the jury on the lesser-includedoffense of battery, and Ms. Alexander told the jury that defendantwas the party who requested the instruction. The followingcolloquy occurred:

"MS. ALEXANDER [Assistant State's Attorney]: You aregoing to get an instruction, you are going to get threeverdict forms for this particular offense. One, that thedefendant is guilty of aggravated battery. There is also averdict form that says he's not guilty of aggravated battery. You are going to read another verdict form, that he's guiltyof battery. Ladies and gentlemen, the defense has requestedthis, and we're asking you not --

MS. HOWARD [defense counsel]: Objection.

THE COURT: Sustained.

MS. ALEXANDER: We are asking you not to fall for thecompromise. Don't call this horrific crime anything less thanwhat it is. It's aggravated battery. It's not merely abattery. Find him guilty of aggravated battery."

Defense counsel did not object to the prosecutor's statementthat the jury should not "fall for the compromise," and the juryfound defendant guilty of the aggravated battery of David. Defendant was also found guilty of the battery of Vivian.

At the sentencing hearing, the State argued that severalaggravating factors found in section 5--5--3.2 of the Unified Codeof Corrections (Code) (730 ILCS 5/5--5--3.2 (West 2000)) supportedthe imposition of a long, nonextended sentence under section 5--8--1 of the Code (730 ILCS 5/5--8--1 (West 2000)). Specifically, theprosecutor argued that (1) defendant's conduct caused or threatenedserious harm, (2) defendant had a history of criminal activity, (3)a long sentence was necessary to deter others, and (4) defendantcommitted the felony of aggravated battery while serving probationfor a prior felony. See 730 ILCS 5/5--5--3.2(a)(1), (a)(3),(a)(7), (a)(12) (West 2000). While arguing that defendant'scriminal history warranted a long prison term, the prosecutormentioned several of defendant's prior misdemeanor convictions, aswell as his 1991 aggravated battery conviction. Defendant did notchallenge the statements as untrue.

The trial court then sentenced defendant to a six-yearextended term for the aggravated battery of David. The court notedthat it had considered the aggravating and mitigating factors, thevictim impact statements, defendant's psychiatric problems, and allof his prior convictions. The court did not expressly find thatdefendant's 1991 aggravated battery conviction rendered himeligible for an extended prison term. The court imposed aconcurrent 364-day jail sentence for the battery of Vivian andrecommended that defendant receive psychiatric treatment whileincarcerated.

ANALYSIS

On appeal, defendant does not challenge the sufficiency of theevidence. Instead, he initially argues that he was denied hisright to self-representation. At several stages of theproceedings, defendant expressed his dissatisfaction with theperformance of defense counsel. After defendant was twice foundfit for trial, the court found that defendant voluntarily andintelligently waived his right to counsel. However, defendantsubsequently asked the court to appoint someone to help him withhis case. The following colloquy occurred:

"THE COURT: Do you want [the public defender's office] torepresent you, or are you going to represent yourself?

DEFENDANT: That's the problem. I don't have any ideaabout the law. What I am saying, [assistant public defenderElias] has caused me so many problems over the last year.

THE COURT: All right. Well, if you are telling me youdon't have any idea what you're doing, I am going to deny themotion to withdraw. [The] January 31st [trial date] willstand.

You have to cooperate with your attorney. The case isgoing to go to trial on that day. If you don't cooperate withthem, then their ability to represent you is going to behindered by that lack of information, okay?"

Defendant asserts that the trial court should have grantedElias's motion to withdraw and then appoint standby counsel. It iswell settled that a defendant's waiver of counsel must be clear andunequivocal. People v. Burton, 184 Ill. 2d 1, 21 (1998). Whendetermining whether a waiver is unambiguous, a court shouldconsider the context of the proceedings and the circumstances ofeach case. Burton, 184 Ill. 2d at 22. Even if a defendantindicates that he wishes to proceed pro se, he may later acquiescein representation by counsel. Burton, 184 Ill. 2d at 23. Moreover, a defendant can waive his right to self-representation by subsequent conduct indicating that he is vacillating or hasabandoned his request completely. People v. Meeks, 249 Ill. App.3d 152, 170 (1993). A trial court's decision on the issue shouldnot be reversed absent an abuse of discretion. People v. Fritz,225 Ill. App. 3d 624, 626-27 (1992).

Defendant asked the court to permit assistant public defenderElias to withdraw. However, defendant subsequently requestedstandby counsel because he did not understand the law. Defendantstated that he could not read or write very well or afford anattorney. Defendant concedes on appeal that he did not have aright to standby counsel. See People v. Redd, 173 Ill. 2d 1, 38(1996) (a trial court has broad discretion to appoint counsel foradvisory or other limited purposes and to determine the extent ofstandby counsel's involvement). We conclude that his repeatedcomplaints about appointed counsel amounted to an ongoing requestfor a substitution of counsel rather than an assertion of his rightto proceed pro se. In fact, the court twice asked defendantwhether he wished to proceed without counsel, and each timedefendant responded that he merely wanted Elias's representation toend. Defendant's indication that he wished to proceed pro se wasambiguous, and he acquiesced in Elias's representation at trial. Therefore, we conclude that the court did not abuse its discretionwhen it denied Elias's motion to withdraw. See Fritz, 225 Ill.App. 3d at 626-27.

Defendant next argues that he was denied a fair trial when theprosecutor mentioned during the closing argument that defendant wasrelying on the lesser-included offense instruction to limit hiscriminal liability. Defendant contends that the prosecutor'sstatements implied that defendant's introduction of the instructionwas a fraudulent use of trial strategy.

A trial court's decision on the propriety of closing argumentshould not be reversed on appeal unless the court abused itsdiscretion. People v. Buss, 187 Ill. 2d 144, 244 (1999). When theprosecutor's disregard for the bounds of proper argument isflagrant and purposeful, the only logical conclusion is that thecomments were made for the sole purpose of prejudicing thedefendant. People v. Moya, 175 Ill. App. 3d 22, 24-25 (1988). Defendant contends that the prosecutor knew or should have knownthat it was improper to inform the jury that defense counsel hadrequested the lesser-included offense instruction, and, therefore,she made the objectionable statement for the sole purpose ofprejudicing defendant. We disagree. The record reveals that theprosecutor's statement was inadvertent and isolated.

Every defendant has the right to a trial free from improperprejudicial comments by the prosecutor. However, the prosecutor isallowed a great deal of latitude during closing arguments. Peoplev. Pasch, 152 Ill. 2d 133, 184 (1992). Although the prosecutor'sremarks may sometimes exceed the bounds of proper comment, theverdict must not be disturbed on appeal unless the remarkssubstantially prejudiced the accused so that the verdict would havebeen different absent the comments. Pasch, 152 Ill. 2d at 185. Here, there was overwhelming evidence of defendant's guilt. Davidtestified that defendant stabbed him twice with a knife, and Davidwas treated for stab wounds. Vivian testified that she hearddefendant retrieve something from a kitchen drawer before Davidshouted, "[W]hy did you [defendant] stick me with that knife?" Thetrial court sustained defense counsel's objection to the admittedlyimproper remark, and we conclude that the comment did not affectthe jury's verdict.

Defendant also claims that the prosecutor's statement"insinuated that defendant was conceding that he had committed abattery." We disagree. The prosecutor expressly argued thatdefendant did not commit battery. She asserted that defendant'sconduct warranted an aggravated battery conviction instead. Therefore, we conclude that the trial court did not abuse itsdiscretion when it permitted the prosecutor to argue that the juryshould not "fall for the compromise" of finding defendant guilty of mere battery.

Finally, defendant contends that his six-year sentence foraggravated battery violates Apprendi. We agree. At the sentencinghearing, the trial court noted that it had considered theaggravating and mitigating factors of sections 5--5--3.2 and 5--5--3.1 of the Code. The prosecutor specifically argued thatdefendant's 1991 aggravated battery conviction warranted a long,nonextended prison term under section 5--5--3.2(3), and the courtdid not expressly find that the conviction authorized an extendedterm.

In Apprendi, the Supreme Court invalidated a New Jersey hatecrime statute that increased the nonextended 5- to 10-yearsentencing range for possession of a firearm for an unlawfulpurpose to an extended 10- to 20-year term if the trial judge foundby a preponderance of the evidence that the defendant, whencommitting the offense for which he was being sentenced, had actedwith a racially biased purpose. Apprendi, 530 U.S. at 469, 147 L.Ed. 2d at 442, 120 S. Ct. at 2351. The Court held that, "[o]therthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455,120 S. Ct. at 2362-63.

This case is similar to People v. Chanthaloth, 318 Ill. App.3d 806 (2001). In that case, a jury found the defendant guilty ofhome invasion and residential burglary, and the trial court imposeda 40-year extended term of imprisonment and a consecutive 4-yearnonextended term of imprisonment for the respective offenses. Thetrial court found that the following aggravating factors renderedthe defendant eligible for an extended sentence for home invasion: (1) the crime was exceptionally brutal and heinous (see 730 ILCS5/5--5--3.2(b)(2) (West 1998)), (2) the victim was over the age of60 (see 730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)), and (3) thevictim was physically handicapped at the time of the offense (see730 ILCS 5/5--5--3.2(b)(4)(iii) (West 1998)). Chanthaloth, 318Ill. App. 3d at 814. On appeal, we vacated the defendant'sresidential burglary conviction and sentence (Chanthaloth, 318 Ill.App. 3d at 814) and also held that the extended sentence for homeinvasion violated Apprendi (Chanthaloth, 318 Ill. App. 3d at 818). We noted that the State had presented evidence that the victim wasover the age of 60 and that factor was not challenged by thedefense. Therefore, we concluded, the age of the victim was anelement of the aggravating offense that was submitted to a jury andproved beyond a reasonable doubt in compliance with Apprendi. Wenevertheless vacated the defendant's extended sentence because itappeared that the trial court had considered not only the victim'sage but also the victim's disability and the nature of the crime. Chanthaloth, 318 Ill. App. 3d at 818. Under Chanthaloth, even ifa finding of one aggravating factor complies with Apprendi, anextended sentence should nevertheless be vacated and the defendantresentenced when (1) the record reflects that the trial court foundother aggravating factors that should have been proved beyond areasonable doubt and submitted to a jury and (2) the courterroneously considered those factors when imposing the sentence. See Chanthaloth, 318 Ill. App. 3d at 818.

Here, defendant was convicted of aggravated battery, which isa Class 3 felony ordinarily punishable by a nonextended term of twoto five years' imprisonment. See 720 ILCS 5/12--4(e) (West 2000);730 ILCS 5/5--8--1(a)(6) (West 2000). Defendant was eligible foran extended term of 5 to 10 years' imprisonment because he had beenconvicted of aggravated battery within 10 years of his prioraggravated battery conviction. See 730 ILCS 5/5--5--3.2(b)(1), 5--8--2(a)(5) (West 2000)). The trial court imposed a six-yearextended term of imprisonment, and Apprendi did not require thejury to find beyond a reasonable doubt that defendant had a priorconviction of aggravated battery. However, the record does notreveal whether the trial court correctly relied upon only the 1991aggravated battery conviction when extending defendant's sentencebeyond the maximum. If the court, in fact, found that otheraggravating factors under section 5--5--3.2 warranted theimposition of an extended sentence, the sentence would violateApprendi because those factors were not submitted to the jury andproved beyond a reasonable doubt. Because we cannot determinewhether the court considered defendant's 1991 conviction only whenimposing the extended term, we vacate defendant's sentence foraggravated battery and remand the cause for resentencing. SeeChanthaloth, 318 Ill. App. 3d at 818. If the trial court elects toimpose an extended sentence on remand, Chanthaloth requires thecourt to expressly note that it is relying only on the prior Class3 felony conviction under section 5--5--3.2(b)(1) of the Code. SeeChanthaloth, 318 Ill. App. 3d at 818

For these reasons, defendant's convictions of aggravatedbattery and battery are affirmed, but his sentence for aggravatedbattery is vacated, and the cause is remanded for resentencing onthat conviction.

Affirmed in part and vacated in part; cause remanded withdirections.

GROMETER, J., concurs.

PRESIDING JUSTICE HUTCHINSON, dissenting:

My dissent in this case reaches only the Apprendi sentencingissue. As author of People v. Chanthaloth, 318 Ill. App. 3d 806(2001), I do not understand that case to mandate the remand of thismatter for resentencing.

The Chanthaloth case was an early disposition in the Apprendiseries of cases. While it remains a valid analysis of the law ofsentencing after the Apprendi decision, later decisions by thesupreme court, this appellate district, and the other appellatecourt districts across the state have sharpened and clarified theIllinois sentencing law as it relates to Apprendi challenges. SeePeople v. Ford, No. 90083 (October 18, 2001); People v. Rivera, No.2--98--1662 (December 5, 2001); People v. Reed, 324 Ill. App. 3d671 (2001); People v. Vida, 323 Ill. App. 3d 554 (2001); People v.Nita, 319 Ill. App. 3d 949 (2001). Very recently, the FirstDistrict found that the trial court properly considered the age ofthe victim when imposing an extended-term sentence even though thevictim's age had not been submitted as a factor to the jury. Thereviewing court determined that evidence of the victim's age hadbeen presented during the trial, was undisputed by the parties, anddid not require the trial court to weigh evidence or examine thedefendant's mental state. The reviewing court held that it washarmless error. People v. Blackwell, 1--99--4064, slip op. at ___ (September 18, 2001).

Finally, the principle that a trial court need find only asingle statutory factor in aggravation to impose an extendedsentence has also recently been reinforced. People v. Peacock, 324Ill. App. 3d 749, 756-567 (2001).

In this case, the trial court noted that it had considereddefendant's prior criminal history, which included a 1991aggravated battery conviction, as well as other aggravating andmitigating factors when sentencing defendant. While I will concedethat the trial court did not expressly highlight this conviction orindicate specific reliance on this conviction, the fact remainsthat such a prior conviction exists. More significantly, thisprior conviction is of aggravated battery, and the charge for whichdefendant received an extended-term sentence is an aggravatedbattery.

Since the trial court need find only a single statutory factorin aggravation to impose an extended term, and the use of thedefendant's prior criminal history is not prohibited by Apprendi(530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63), Iwould allow the sentence to stand and affirm this case in itsentirety.